Eureka Cnty. v. Seventh Judicial Dist. Court of State
| Decision Date | 17 May 2018 |
| Docket Number | No. 72317,72317 |
| Parties | EUREKA COUNTY; Diamond Natural Resources Protection & Conservation Association; Jason King, P.E., Nevada State Engineer, Division of Water Resources, Department of Conservation and Natural Resources; Baumann Family Trust ; Burnham Farms, LLC; Galen Byler; Marian Byler; Conley Land & Livestock, LLC; Damele Farms, Inc.; Diamond Valley Hay Company, Inc.; Fred L. Etchegaray; John J. Etchegaray; Mary Jean Etchegaray; LW & MJ Etchegaray Family Trust; Eureka Management Co., Inc.; Gallagher Farms LLC ; Jayme L. Halpin; Sandi Halpin; Tim Halpin; High Desert Hay, LLC; J&T Farms, LLC; J.W.L. Properties, LLC; Mark Moyle Farms LLC ; J.R. Martin Trust; Cheryl Morrison ; Matt Morrison; Debra L. Newton; William H. Norton; Patricia Norton ; D.F. & E.M. Palmore Family Trust; Stewardship Farming, LLC; Scott Bell; Kristina Bell; Don Bergner; Linda Bergner; James Etcheverry; Michel and Margaret Ann Etcheverry Family Limited Partnership; Mark T. and Jennifer R. Etcheverry Family Trust; Martin P. and Kathleen A. Etcheverry Family Trust; Lavon Miller ; Kristi Miller ; Lynford Miller; Susan Miller; Alberta Morrison; and Donald Morrison, Petitioners, v. The SEVENTH JUDICIAL DISTRICT COURT of the State of Nevada, IN AND FOR the COUNTY OF EUREKA; and the Honorable Gary Fairman, District Judge, Respondents, and Sadler Ranch, LLC ; Roger Allen; and Judith Allen, Real Parties in Interest. |
| Court | Nevada Supreme Court |
Theodore Beutel, District Attorney, Eureka County; Allison MacKenzie, Ltd., and Karen A. Peterson and Willis M. Wagner, Carson City, for Petitioner Eureka County.
Adam Paul Laxalt, Attorney General, and Justina A. Caviglia, Deputy Attorney General, Carson City, for Petitioner Jason King, P.E.
McDonald Carano LLP and Debbie A. Leonard and Michael A.T. Pagni, Reno, for Petitioners.
Parsons Behle & Latimer and Robert W. Marshall and Gregory H. Morrison, Reno, for Real Parties in Interest Roger Allen and Judith Allen.
Taggart & Taggart, Ltd., and David H. Rigdon, Paul G. Taggart, and Rachel L. Wise, Carson City, for Real Party in Interest Sadler Ranch, LLC.
BEFORE HARDESTY, PARRAGUIRRE and STIGLICH, JJ.
Water in Diamond Valley, Nevada, is over-appropriated and has been pumped at a rate exceeding its perennial yield for over four decades. In 2014, the Office of the State Engineer found that groundwater levels in southern Diamond Valley had fallen over 100 feet. A vested, senior water rights holder has asked the district court to order the State Engineer to curtail junior water rights in the Diamond Valley Hydrographic Basin No. 153 (Diamond Valley). In this writ proceeding, we must determine whether junior water rights holders are entitled to notice of and an opportunity to participate in the district court’s consideration of this curtailment request. Because the district court’s consideration of the matter at the upcoming show cause hearing could potentially result in the initiation of curtailment proceedings, we conclude that due process requires junior water rights holders in Diamond Valley be given notice and an opportunity to be heard.
Real party in interest Sadler Ranch purchased its real property and water rights in Diamond Valley in September 2011. The acquired ranch was established in the mid–19th century, and thus, Sadler Ranch claims to be a pre-statutory, vested, senior water rights holder in Diamond Valley. Of the two major springs on Sadler Ranch’s property, one has noticeably diminished in flow and the other has stopped flowing completely.
In 2014, Sadler Ranch petitioned the State Engineer for replacement water to offset the loss from its springs but was ultimately awarded a fraction of the volume of water it requested. Dissatisfied with the State Engineer’s replacement water award, Sadler Ranch petitioned the district court in April 2015 to order the State Engineer to initiate curtailment proceedings regarding junior water rights in Diamond Valley and to reimburse Sadler Ranch for damage to its senior water rights. The district court subsequently allowed dozens of parties to intervene in the litigation, including petitioners Eureka County and Diamond Natural Resources Protections & Conservation (collectively, Eureka County) and all of the other petitioners listed in the instant petition. The State Engineer then proposed to designate Diamond Valley as a critical management area (CMA).1 Sadler Ranch moved to stay the proceedings pending the outcome of the State Engineer’s action, which the district court granted. In August 2015, the State Engineer officially designated Diamond Valley as a CMA pursuant to his authority under NRS 534.110(7)(a).
After determining that the State Engineer’s CMA designation was not going to help its water dispute, Sadler Ranch filed an amended petition for curtailment. In its amended petition, Sadler Ranch requested the district court to either (1) direct the State Engineer to begin curtailment proceedings, or (2) issue an order curtailing pumping based on the State Engineer’s knowing and intentional refusal to follow Nevada law. The district court entered an order granting in part and denying in part the State Engineer’s motion to dismiss, finding that Sadler Ranch’s amended petition pleaded sufficient facts to conclude that the State Engineer’s failure to order curtailment was an abuse of his discretion. The same day, the district court entered an alternative writ of mandamus directing the State Engineer to begin curtailment proceedings or show cause why the State Engineer has not done so.
In August 2016, the State Engineer filed a motion arguing that Sadler Ranch must provide notice to all Diamond Valley appropriators who may be affected by the district court’s decision at the upcoming show cause hearing. Eureka County joined in the motion. Sadler Ranch opposed the motion, arguing that the upcoming hearing to show cause would not result in a final order of curtailment that requires notice and that the State Engineer was the proper party to give notice to Diamond Valley appropriators because he maintains the records of water rights holders.
In October 2016, the district court denied the State Engineer’s motion. The district court reasoned that even if it ordered curtailment at the upcoming show cause hearing, "the ‘how’ and ‘who’ of curtailment could not be decided until a future proceeding." The district court concluded that due process was not required until that future proceeding. The district court also reasoned that any potential unnotified parties were already adequately represented by the diverse interests of the dozens of interveners and, because NRCP 24 prevents parties from intervening in an action when their interests are already adequately represented, it would be illogical to notify parties of a proceeding they cannot then join.
Eureka County subsequently filed a motion for reconsideration and was joined by the State Engineer. The district court denied Eureka County’s motion to reconsider, again finding that unnotified appropriators were already adequately represented and that due process had not attached because the upcoming show cause hearing would not curtail any specific parties’ rights. In February 2017, Eureka County filed the instant writ petition.
The writ petition should be entertained
"This court has original jurisdiction to issue writs of mandamus and prohibition." MountainView Hosp., Inc. v. Eighth Judicial Dist. Court , 128 Nev. 180, 184, 273 P.3d 861, 864 (2012) ; see Nev. Const. art. 6, § 4. "A writ of mandamus is available to compel the performance of an act which the law requires as a duty resulting from an office, trust or station, or to control a manifest abuse or an arbitrary or capricious exercise of discretion." Cote H. v. Eighth Judicial Dist. Court, 124 Nev. 36, 39, 175 P.3d 906, 907–08 (2008) (internal quotation marks and alterations omitted). Because a writ petition seeks an extraordinary remedy, this court has discretion whether to consider such a petition. Cheung v. Eighth Judicial Dist. Court , 121 Nev. 867, 869, 124 P.3d 550, 552 (2005).
Generally, extraordinary writ relief is only available where there is no "plain, speedy and adequate remedy in the ordinary course of law." NRS 34.170 ; Int’l Game Tech., Inc . v. Second Judicial Dist. Court, 124 Nev. 193, 197, 179 P.3d 556, 558 (2008). However, we have previously stated that "[w]hile an appeal generally constitutes an adequate and speedy remedy precluding writ relief, we have, nonetheless, exercised our discretion to intervene under circumstances of urgency or strong necessity, or when an important issue of law needs clarification and sound judicial economy and administration favor the granting of the petition," Nev . Yellow Cab Corp. v. Eighth Judicial Dist. Court, 132 Nev., Adv. ––––, ––––, 383 P.3d 246, 248 (2016) (quoting Cote H., 124 Nev. at 39, 175 P.3d at 907–08 ).
We choose to entertain the instant writ petition as one for mandamus since it appears the district court arbitrarily and capriciously exercised its discretion by denying the State Engineer’s motion.2 See Cote H ., 124 Nev. at 39, 175 P.3d at 908. The parties do not dispute the district court’s contention that at some point in the proceedings due process will attach but dispute when due process must be provided for junior water rights holders. Judicial economy favors answering the due process question now rather than on appeal after the hearings are held. Additionally, even though there is only one basin in Nevada currently designated as a CMA, there are a number of other basins that are currently over-appropriated and may require curtailment proceedings in the future. Thus, addressing the due process concerns now will clarify the notice requirements in water rights curtailment actions.
Due process requires notice be given to all junior water rights holders
We review constitutional challenges de novo, including a violation of due...
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